Administrative Rule of the Month - Allocation of Race Dates and Permits

On August 23rd, Indiana Breeder and Owner Protection, Inc. (IBOP) requested a meeting with representatives of the Indiana Inspector General's Office to discuss the Indiana Horse Racing Commission (IHRC) Executive Director Joe Gorajec's cancellation of race days at Indiana Downs on June 15th and 16th. In part, IBOP's view is that this action was outside of any delegated authority. The full version of our submission to the Inspector General can be found at: http://ibopindy.blogspot.com/2012/08/ibop-requests-investigation-of.html . In that submission we referenced 71 IAC 2-9-1(c) under 'Allocation of race dates and permits' which is copied below. To expand a little bit on our observations and request to the Inspector General, we've made 'Allocation of Race Dates and Permits' our September 'Administrative Rule of the Month.'

71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.

71 IAC 2-9-1(c) provides that "In case of emergencies, the judges may authorize cancellation of all or a portion of any race day." Via this administrative rule, which has the rule of law, the IHRC has delegated to the judges the ability to cancel racing. This makes perfect sense since the judges are the racing officials who are the closest to actual racing and training at the tracks. To be clear on any semantics, as seen below in 71 IAC 1.5-1-49, the Indiana Administrative Code defines a 'judge' and 'steward' as being synonymous.

71 IAC 1.5-1-49 "Judge" or "steward" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 49. "Judge" or "steward" means a duly appointed racing official or judge with powers and duties specified by these rules. (Indiana Horse Racing Commission; 71 IAC 1.5-1-49; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)

What is also clear in 71 IAC 2-9-1(c) is that the IHRC has NOT delegated the authority to cancel race days to the Executive Director. Yet, that is exactly what Mr. Gorajec did, cancel race days. Our opinion is that Mr. Gorajec acted outside of his delegated authority and in doing so violated the Indiana Administrative Code with his actions. Rather than publish IBOP's entire evaluation and findings on this blog or in our newsletter, we feel that the Inspector General should be first provided the opportunity to begin an investigation. At some point, IBOP will share our complete file on the cancellation of race days at Indiana Downs, should the Inspector General decide against an investigation. We will, however, share with you what the IHRC has done since the cancellation.

At the IHRC's meeting on June 25th, the three commissioners in attendance, which included former Chairman Sarah McNaught, approved the Final Report on the cancellations which was prepared by the IHRC's staff. No where in that Final Report was there any mention of 71 IAC 2-9-1(c) nor were there any questions about Mr. Gorajec's actual authority to cancel race days. (IBOP will expand upon this Final Report, if needed, at some point in the future.) At the IHRC's August 30th meeting, the commissioners voted unanimously to amend 71 IAC 2-9-1(c) via their emergency rulemaking authority. Once the new rule is filed with the Indiana Register, 71 IAC 2-9-1(c) will now read, "In the case of emergencies, the judges, stewards, or the Executive Director (emphasis added) may authorize cancellation of all or a portion of any race day." One of the questions that needs to be answered is, if Mr. Gorajec actually had the authority to cancel race days, then why was it necessary to modify the Indiana Administrative Code to delegate that authority to him in the future? When the amendment was presented to the commissioners, there was no discussion, no questions and they spent less than two minutes on the subject.

In our July newsletter, IBOP suggested that the IHRC staff's Final Report raised more questions than provided answers. There are many questions regarding the cancellation of the two race days at Indiana Downs that need to be answered. By the IHRC's actions on August 30th, they've added another one, why add the Executive Director to rule now? Given that the IHRC is incapable of investigating their own actions, the Indiana Inspector General needs to step in.